Amitav Banerji, J. - (1.) This is a second appeal by the defendant against the judgment and decree of the Civil Judge, Mathura, dated 9th Nov., 1970.
(2.) Yagya Dutt Gautam and others, plaintiffs, filed a suit for recovery of Rs. 3,000/- as damages for malicious prosecution against the defendant, Dal Chand Sharma. The plaintiffs were granted a decree to recover a sum of Rs. 1675/-as damages with costs of the suit. On appeal by the defendant, the lower appellate court partly allowed the appeal and modified the decree of the trial court by reducing the amount of Rs. 1675/- to Rs. 1650/-, with proportionate cost throughout. It is against the above judgment and decree that the defendant has come up in second appeal to this Court.
(3.) Mr. G. P. Bhargava, learned counsel for the appellant, contended that the courts below erred in law in decreeing the suit of the plaintiffs on erroneous consideration. The findings that there was absence of reasonable and probable cause or that there was malice on the part of the defendant were patently erroneous. The burden lay on the plaintiffs to prove beyond doubt that there was malice and absence of reasonable and probable cause in the criminal prosecution launched at the instance of the defendant. In support of his contention, he relied on two decisions of this Court reported in Allahabad Weekly Reporter, 1936. Pannar v. Khunnu (1936 All WR 296) and Basdeo v. Shyama Charan (1936 All WR 645) . He also relied on a decision in the case of Herniman v. Smith (1936 (2) All ER 1377) .;